Zury Alvizuriz-Lorenzo v. U.S. Attorney General

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-10985

________________________

Agency No. A206-918-567

ZURY ALVIZURIZ-LORENZO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(October 28, 2019)

Before WILSON and NEWSOM, Circuit Judges, and PROCTOR, * District Judge.

PROCTOR, District Judge:

*

Honorable R. David Proctor, District Judge for the United States District Court for the Northern

District of Alabama, sitting by designation.

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Zury Alvizuriz-Lorenzo, a native and citizen of Guatemala, petitions for

review of a final order of the Board of Immigration Appeals (BIA), which affirmed

the decision of the Immigration Judge (IJ) denying asylum. The BIA and IJ denied

Alvizuriz-Lorenzo’s claims because she failed to prove that her two proposed

social groups—“girls or young women in Guatemala who cannot leave their family

as a result of their age or economic conditions” or “girls or young women who

cannot leave their family”—were cognizable for the purposes of asylum.

After careful consideration, and particularly in light of the standard of

review applicable here, we deny the petition.

I. Background

Alvizuriz-Lorenzo entered the United States without inspection in 2015

through Laredo, Texas. She boarded a Florida-bound bus, but Immigration

officers from the Department of Homeland Security (DHS) stopped the bus and

took her into custody.

DHS commenced removal proceedings and issued a Notice to Appear,

which charged Alvizuriz-Lorenzo with being removable under § 212(a)(6)(A)(i) of

the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1182(a)(6)(A)(i).

Alvizuriz-Lorenzo conceded removability as charged. However, to avoid removal,

Alvizuriz-Lorenzo applied for asylum. She asserted that she suffered and feared

persecution on account of her membership in a particular social group. She did not

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initially specify a particular social group in her application.

At her merits hearing, Alvizuriz-Lorenzo sought asylum based on her

membership in a particular social group consisting of “girls or young women in

Guatemala who cannot leave their family as a result of their age or economic

conditions.” Alternatively, Alvizuriz-Lorenzo has defined her particular social

group as “girls or young women in Guatemala who cannot leave their family.”

Although not mentioned in her application, at the hearing Alvizuriz-Lorenzo

testified in detail about the abhorrent events that led to her fleeing Guatemala to

seek refuge in the United States.

Beginning at age nine, Alvizuriz-Lorenzo was sexually abused by her

grandfather. She explained that her grandfather sexually abused her on a weekly

basis until she was thirteen. She provided the IJ with specifics about the

reprehensible misconduct of her grandfather. It was detestable. The grandfather’s

repeated sexual abuse ceased when Alvizuriz-Lorenzo’s older brother, Luis

Miguel, caught him in the act. Luis Miguel informed their grandmother of her

husband’s sexual abuse of Alvizuriz-Lorenzo. The grandmother confronted her

husband and, after engaging in a verbal confrontation with him, suffered a stroke.

She died less than a year later. Although the grandfather stopped sexually

assaulting Alvizuriz-Lorenzo, he continued to psychologically abuse her by

blaming her for his wife’s death. Alvizuriz-Lorenzo testified that her family did not

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report the grandfather’s abuse because Guatemalan police “[don’t] do anything in

regards to these things.” When asked why she did not include claims that her

grandfather sexually abused her in her application, she explained that she was

embarrassed and, initially, was afraid to divulge the information.

Alvizuriz-Lorenzo further testified that, although her grandfather never

touched her again, her father, who was absent from the household for several

years, returned when she was sixteen years old and sexually abused her over the

next five years. At first, Alvizuriz-Lorenzo became very close to her father. She

had missed him while he was away. But her father soon began to question her

about the grandfather’s acts. The father told Alvizuriz-Lorenzo that he wanted to

know whether she was still a virgin. He then began molesting her. Within a year

of his return, he forced Alvizuriz-Lorenzo to have sexual relations with him. This

incestual sexual abuse continued until Alvizuriz-Lorenzo was twenty-one, when

her older brother walked in on the father raping her. After being discovered, her

father never touched her again. She did not inform her mother of the abuse until

the day of the merits hearing. Alvizuriz-Lorenzo stated the abuse was not reported

because the Guatemalan police would consider it a “waste of time.”

On cross-examination, Alvizuriz-Lorenzo acknowledged that there were

prisons in Guatemala but she stated that authorities did not incarcerate rapists

because rape was “not something [that] the police investigate when it happens to

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women there.” Alvizuriz-Lorenzo submitted three reports on the conditions in

Guatemala: (1) a 2015 Human Rights Report for Guatemala; (2) the 2015/2016

Amnesty International Annual Report for Guatemala; and (3) a 2014 Human

Rights Watch Report on Guatemala. She also submitted two articles that

emphasize the pervasive nature of violence against women in Guatemala.

At the end of the merits hearing, the IJ issued a decision denying Alvizuriz-

Lorenzo’s application for asylum, finding that she was removable. 1 In particular,

the IJ found Alvizuriz-Lorenzo credible and determined that her sexual abuse and

experiences rose to the level of past persecution under applicable regulations.

However, the IJ concluded that Alvizuriz-Lorenzo was not persecuted on account

of a protected ground because her proposed social group was “not a cognizable

particular social group for purposes of asylum.” Although the proposed group may

have satisfied the “immutability” requirement, the IJ reasoned, it did not satisfy the

1

Additionally, Alvizuriz-Lorenzo indicated during the proceedings before the IJ that she was

raped and impregnated by her cousin’s husband. However, as Alvizuriz-Lorenzo stated in the IJ

proceedings, and again in her appeal to the BIA, her proposed particular social group solely

relates to abuse inflicted by her father and grandfather. A.R. at 4. In fact, before the IJ, her

counsel argued that the abuse at the hands of her cousin’s husband was “because of her religious

beliefs,” since Alvizuriz-Lorenzo also applied for asylum based on past persecution for her

religious views. A.R. at 98. The IJ ultimately decided that the abuse suffered by Alvizuriz-

Lorenzo was not inflicted on account of her religion—a decision that she does not challenge

here. A.R. at 107. Because Alvizuriz-Lorenzo has not argued on appeal that the rape by her

cousin’s husband is relevant to her proposed social group, the argument is considered waived.

See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1256 n.6 (11th Cir. 2006) (explaining issues not

argued in opening brief are waived). We note further that the IJ and BIA denied Alvizuriz-

Lorenzo’s request for protection under the United Nations Convention Against Torture (CAT)—

another decision that she does not challenge here. A.R. at 5.

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“particularity” or “social distinction” requirements.

On appeal, the BIA affirmed the denial of Alvizuriz-Lorenzo’s application

for asylum. By a 2-1 vote, the panel agreed with the IJ’s finding that the past

mistreatment of Alvizuriz-Lorenzo rose to the level of past persecution, but also

agreed that she had not been persecuted on account of a particular social group

comprised of “girls or young women in Guatemala who cannot leave their family

as a result of their age or economic conditions.” The BIA agreed with the IJ that

such a group lacked social distinction. The third panel member issued a

concurring and dissenting opinion, agreeing that Alvizuriz-Lorenzo had not

established eligibility for asylum based on her religion, but disagreeing with the

majority that the particular social group at issue was not cognizable.2

2

Specifically, the third panel member disagreed with the majority’s analysis of the particularity

and the social distinction prongs. In her analysis, the third panel member applied de novo review

to the IJ’s legal and factual findings with respect to particularity and social distinction.

Regarding particularity, the third panel member found the terms defining Alvizuriz-Lorenzo’s

groups—“girls,” “young women,” “family,” and “unable to leave”—to have commonly accepted

definitions within Guatemalan society and, as such, concluded Alvizuriz-Lorenzo’s groups were

particularly defined. Moreover, the third panel member determined that, when considering

Matter of A-R-C-G-, Alvizuriz-Lorenzo’s proposed groups were socially distinct. Thus, the third

panel member would have dismissed Alvizuriz-Lorenzo’s appeal in part, sustained it in part, and

remanded the case for the IJ to determine whether her father and grandfather harmed her on

account of her membership in her proposed social groups. We find it significant that the third

panel member purported to apply “de novo review” when determining that she would reverse the

IJ’s determination, rather than the clear error standard applicable to the IJ’s fact finding. See

A.R. at 7–8. We acknowledge that this is the type of case that tempts a reviewing judge to

substitute her opinion for those of the trier of fact. Even the IJ stated, “[t]he [c]ourt wishes that

asylum law was such that [it could] grant relief to someone in [Alvizuriz-Lorenzo’s] situation.”

A.R. at 109. But she also acknowledged “the [c]ourt must apply the law to the facts of the []

case.” Id. As the IJ concluded, the result was driven by the fact that the law is not on Alvizuriz-

Lorenzo’s side. Id. We also sympathize with Alvizuriz-Lorenzo. Nevertheless, we are bound to

apply the substantial evidence standard of review on this appeal.

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Alvizuriz-Lorenzo now petitions us for review.

II. Standard of Review

We review the BIA’s legal conclusions de novo, including whether an

alleged group qualifies as a “particular social group” under the INA. Gonzales v.

U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Factual determinations, in

contrast, are reviewed according to the substantial evidence standard, which

requires us to view the record in the light most favorable to the agency’s decision

and draw all reasonable inferences in its favor. Adefemi v. Ashcroft, 386 F.3d 1022,

1026–27 (11th Cir. 2004) (en banc).

The particular social group inquiry is a “mixed question of law and fact.”

That means we review de novo the ultimate legal conclusion as to the existence of

a particular social group, but review the underlying factual findings for substantial

evidence. See Matter of W-G-R-, 26 I. & N. Dec. 208, 209–10 (BIA 2014), vacated

in part on other grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (“While

the analysis of a particular social group claim is based on the evidence presented

and is often a fact-specific inquiry, the ultimate determination whether a particular

social group has been established is a question of law.”). The standard of review is

critical in this appeal. Therefore, we address it in detail.

We will “affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Sanchez

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Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1230 (11th Cir. 2007). This is a

deferential standard. In fact, we will only reverse the IJ’s decision on a fact

question if we find that the record compels, not merely supports, reversal. Id.

An applicant for asylum must meet the INA’s definition of a refugee. 8

U.S.C. § 1158(b)(1). The definition of a “refugee” includes:

any person who is outside any country of such person’s

nationality . . . and who is unable or unwilling to return

to, and is unable or unwilling to avail . . . herself of the

protection of, that country because of persecution or a

well-founded fear of persecution on account of . . .

membership in a particular social group.

8 U.S.C. § 1101(a)(42)(A). In order to meet the definition of a refugee, the

applicant must demonstrate either: (1) “past persecution on account of a statutorily

listed factor,” or (2) “a well-founded fear the statutorily listed factor will cause”

further persecution. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).

We have held “the BIA’s interpretation of the phrase ‘particular social

group’ . . . is entitled to Chevron 3 deference because the [Act] does not define the

phrase and it is ambiguous.” Gonzalez, 820 F.3d at 404 (citing Castillo-Arias v.

U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006)). We defer to the BIA’s

interpretation of what constitutes a particular group under the INA unless the

interpretation is unreasonable, arbitrary, capricious, or clearly contrary to law.

3

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

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Castillo-Arias, 446 F.3d at 1196. The BIA has clarified that “membership in a

particular social group” requires an applicant for asylum to establish the group is

“(1) composed of members who share a common immutable characteristic, (2)

defined with particularity, and (3) socially distinct within the society in question.”

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014); see also Gonzalez,

820 F.3d at 404. A social “group’s recognition for asylum purposes is determined

by the perception of the society in question, rather than by the perception of the

persecutor.” Matter of M-E-V-G-, 26 I. & N. Dec. at 242.

III. Analysis

In reviewing this petition, we analyze each of the elements identified by the

BIA, in turn. After doing so, we conclude the petition is due to be denied.

a. Immutability

An immutable characteristic is one “that the members of the group either

cannot change, or should not be required to change because it is fundamental to

their individual identities or consciences.” Matter of Acosta, 19 I. & N. Dec. 211,

233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N.

Dec. 439 (BIA 1987). The BIA has provided a non-exhaustive list of immutable

characteristics, including “sex, color, or kinship ties, or in some circumstances . . .

a shared past experience such as former military leadership or land ownership.” Id.

The IJ and BIA both noted that Alvizuriz-Lorenzo’s proposed particular

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social group of “girls or young women in Guatemala who cannot leave their family

as a result of their age or economic conditions” likely satisfies the immutability

requirement. Because Alvizuriz-Lorenzo’s proposed social group is comprised of

members who share a common immutable characteristic of gender (“girls or young

women”) and kinship ties (“who cannot leave their family”), we conclude she has

satisfied the immutability requirement. See Gebremichael v. I.N.S., 10 F.3d 28, 36

(1st Cir. 1993) (“There can, in fact, be no plainer example of a social group based

on common, identifiable and immutable characteristics than that of the nuclear

family.”).

b. Particularity

“A particular social group must be defined by characteristics that provide a

clear benchmark for determining who falls within the group.” Matter of M-E-V-G-

, 26 I. & N. Dec. at 239. The terms used to describe the proposed social group

must have commonly accepted definitions in the society in question. Id.; see also

Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007). The “group must

also be discrete and have definable boundaries—it must not be amorphous,

overbroad, diffuse, or subjective.” Matter of M-E-V-G-, 26 I. & N. Dec. at 239.

The IJ found, and the BIA affirmed, that Alvizuriz-Lorenzo’s particular

social group “lack[ed] the clear boundaries” to be sufficiently particular, and that

“[t]here is no evidence” to the effect that her particular group was viewed as such

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by Guatemalan society. See id. at 239–40 (finding the particularity requirements

relate to the group’s boundaries or the need to put outer limits on the definition of

the particular social group, stating that the “social group must be defined by

characteristics that provide a clear benchmark for determining who falls within the

group”). The BIA stated “while we recognize that [Alvizuriz-Lorenzo] has

presented country conditions reports evidencing general violence against women

and corruption among authorities in Guatemala not specific to her, the Immigration

Judge did not clearly err . . . .” A.R. at 5.

Although Alvizuriz-Lorenzo put forward evidence of widespread violence

against girls or young women in Guatemala, this does not compel the conclusion

that her proposed social group is defined with particularity. The evidence presented

by Alvizuriz-Lorenzo also shows that the group is quite immense, somewhat

diffuse, and comprises a high percentage of Guatemalan women. The IJ found that

the group, as articulated by Alvizuriz-Lorenzo, “lacks the clear boundaries”

necessary to provide a discernable benchmark for determining who falls within the

group. A.R. at 106. We recognize that, in this case, the particularity prong is a

close call. But, after careful consideration, and applying the substantial evidence

standard, we cannot say the record compels reversal. Mendoza v. U.S. Att’y Gen.,

327 F.3d 1283 1287 (11th Cir. 2003) (finding that in order to reverse a factual

determination, the court must conclude “that the record not only supports reversal,

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but compels it” (emphasis added)).

c. Social Distinction

In addition to immutability and particularity, an applicant for asylum must

show that her particular social group is “socially distinct within the society in

question.” Matter of M-E-V-G-, 26 I. & N. Dec. at 252. Social distinction is a

fact-based inquiry. See Pirir-Boc v. Holder, 750 F.3d 1077, 1083–84 (9th Cir.

2014) (describing a “required evidence-based inquiry as to whether the relevant

society recognizes [a] proposed social group”). “To have the ‘social distinction’

necessary to establish a particular social group, there must be evidence showing

that society in general perceives, considers, or recognizes persons sharing the

particular characteristic to be a group.” Matter of W-G-R-, 26 I. & N. Dec. 208,

217 (BIA 2014).

Alvizuriz-Lorenzo has not cited to any record evidence showing that

Guatemalan society perceives “girls or young women in Guatemala who cannot

leave their family as a result of their age of economic conditions” or “girls or

young women in Guatemala who cannot leave their family” as distinct groups.

Alvizuriz-Lorenzo has certainly submitted credible evidence regarding the problem

of gender-based violence in Guatemala. But, the evidence falls short of

establishing that the record compels reversal. The issue is not how we would

answer that question if we sat in the role of the IJ. Rather, the question is whether

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the IJ’s determination is unsupported by “reasonable, substantial, and probative

evidence on the record considered as a whole.” Sanchez Jimenez, 492 F.3d at 1231.

In other words, we must ask if the record evidence compels reversal. Id. We cannot

say that it does.

Additionally, the specialized legislation enacted to address gender violence

in Guatemala does not show Alvizuriz-Lorenzo’s purported social groups have

social distinction. Rather, as the BIA acknowledged, the evidence showed general

violence against women in Guatemala, not that Guatemalan society views the

specific groups of “girls or young women in Guatemala who cannot leave their

family as a result of their age of economic conditions” or “girls or young women in

Guatemala who cannot leave their family” as distinct within society.4

IV. Conclusion

We acknowledge, as did the IJ and BIA, that Alvizuriz-Lorenzo suffered

horrific harm at the hands of her family members. However, we cannot say the

4

The BIA also affirmed the IJ’s determination that Alvizuriz-Lorenzo’s proposed social group

was not analogous to the group the BIA found cognizable in Matter of A-R-C-G-, 26 I. & N. Dec.

388 (BIA 2014). Matter of A-R-C-G- was later expressly overruled by Matter of A-B-, 27 I. & N.

Dec. 316 (2018). Subsequently, Matter of A-B- was abrogated in Grace v. Whitaker, 344 F.

Supp. 3d 96, 125–27 (D.D.C. Dec. 19, 2018) (holding the attorney general’s opinion in Matter of

A-B- “was arbitrary and capricious”). Grace was appealed on January 30, 2019, and is currently

pending in the D.C. Circuit. The Fifth Circuit recently considered the effect of Grace and held

“the Grace injunction does not affect our ability to review or rely on A-B- in deciding [] case[s].”

Gonzales-Veliz v. Barr, No. 18-60174, 2019 WL 4266121, at *5 (5th Cir. Sept. 10, 2019). To be

clear, however, we decide this case without applying Matter of A-R-C-G-, Matter of A-B-, or

Grace.

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evidence in the record compels reversal of the IJ’s findings, affirmed by the BIA,

regarding particularity and distinction.5 See Castillo-Arias, 446 F.3d at 1196. Thus,

Alvizuriz-Lorenzo does not meet the INA’s definition of a refugee and she is

ineligible for asylum. See 8 U.S.C. § 1158(b)(1).

PETITION DENIED.

5

Because Alvizuriz-Lorenzo is unable to establish that she suffered past persecution on account

of a legally-cognizable particular social group, her challenge to the IJ’s denial of humanitarian

asylum under 8 C.F.R. § 1208.13(b)(1)(iii) necessarily fails. See Perez-Zenteno v. U.S. Att’y

Gen., 913 F.3d 1301, 1311 n.3 (11th Cir. 2019) (“[H]umanitarian asylum does not allow an

applicant to receive asylum based on persecution unconnected to any statutorily protected

ground. She still must establish that she is a refugee, which requires a showing of past

persecution on account of a statutorily protected ground.”). Our analysis concerning

membership in a cognizable social group therefore also prevents Alvizuriz-Lorenzo from

claiming humanitarian asylum.

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WILSON, Circuit Judge, dissenting:

The Board of Immigration Appeals’ (BIA) determination that Guatemala

does not “view girls or young women in Guatemala who cannot leave their family

as a result of their age or economic condition” or “girls or young women who

cannot leave their family” as a socially distinct group is not supported by

substantial evidence. For that reason, I dissent.

The majority sets forth the rape and sexual abuse suffered by Alvizuriz-

Lorenzo at the hands of her grandfather and father. In addition, three months after

her father’s abuse ceased, she began working for her cousin and her cousin’s

husband (Bernardo), caring for their toddler. While her cousin was away,

Bernardo told Alvizuriz-Lorenzo that she was wasting her time saving herself.

Bernardo requested that Alvizuriz-Lorenzo show up early one day to care for the

child, and when Alvizuriz-Lorenzo arrived, Bernardo raped and impregnated her.

When Bernardo learned of her pregnancy, he threatened to kill her if she did not

get rid of the child. Because Bernardo was a “very powerful man” with “lots of

connections” in the police force, Alvizuriz-Lorenzo fled Guatemala and gave birth

to her daughter in the United States.

At her merits hearing, Alvizuriz-Lorenzo acknowledged that there were

prisons in Guatemala but stated that authorities did not incarcerate rapists because

rape was “not something [that] the police investigate when it happens to women

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there.” Zury submitted three reports on Guatemala country conditions: (1) a 2015

Human Rights Report for Guatemala, which indicated that full investigation and

prosecution of domestic-violence and rape cases took an average of one year,

impunity for perpetrators was very high, and rape survivors frequently did not

report crimes due to lack of confidence in the justice system, social stigma, and

fear of reprisal; (2) the 2015/2016 Amnesty International Annual Report for

Guatemala, which stated that violence against women continued to be systemic;

and (3) a 2014 Human Rights Watch Report on Guatemala, which stated that

violence against women in Guatemala was a chronic problem, perpetrators rarely

faced trial, and reported rapes and sexual assaults increased by more than one-third

between 2008 and 2011.

Alvizuriz-Lorenzo also submitted two articles that emphasized the pervasive

nature of violence against women in Guatemala. The first stated that Guatemala

had one of the highest rates of femicide—gender-motivated killing of women—in

the world. The report also indicated that human trafficking and gender-motivated

harm from sexual violence remains rampant, and that the government has failed to

develop an effective response. The second article further underscored the violence

committed against women in Guatemala.

At the end of the merits hearing, the IJ issued an oral decision denying

Alvizuriz-Lorenzo’s application for asylum, finding her removable. The IJ found

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Alvizuriz-Lorenzo credible and determined that her sexual abuse and experiences

rose to the level of past persecution under applicable regulations, but concluded

that Alvizuriz-Lorenzo was not persecuted on account of a protected ground

because her proposed social group was “not a cognizable particular social group

for purposes of asylum.” Although the proposed group may have satisfied the

“immutability” requirement, the IJ reasoned, it did not satisfy the “particularity” or

“social distinction” requirements.

On appeal, the BIA affirmed the denial of Alvizuriz-Lorenzo’s application

for asylum. By a 2-1 vote, the panel agreed with the IJ’s finding that Alvizuriz-

Lorenzo’s past mistreatment rose to the level of past persecution, but also agreed

that she had not been persecuted on account of a particular social group comprised

of “girls or young women in Guatemala who cannot leave their family as a result

of their age or economic conditions” because it lacked social distinction. The third

panel member issued a concurring and dissenting opinion, agreeing that Alvizuriz-

Lorenzo had not established eligibility for asylum based on her religion, but

asserting that her particular social group is cognizable.

Although we will “affirm the [IJ’s] decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole,” we will

reverse if we find that the record compels, not merely supports, reversal. Sanchez

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Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).

I. Membership in a Particular Social Group

To qualify as a refugee, a petitioner must demonstrate “(1) past persecution

on account of a statutorily listed factor, or (2) a ‘well-founded fear’ that the

statutorily listed factor will cause future persecution.” Ruiz v. U.S. Att’y Gen., 440

F.3d 1247, 1257 (11th Cir. 2006) (per curiam) (quoting 8 C.F.R. § 208.13(a), (b)).

These factors include “race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). If a petitioner can

successfully demonstrate past persecution on account of a statutorily listed factor,

there is a rebuttable presumption that she has a well-founded fear of future

persecution. Ruiz, 440 F.3d at 1257.

We defer to the BIA’s interpretation of “particular social group,”1 which

requires that the proposed group be (1) composed of members who share a

common immutable characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question. See, e.g., Gonzalez v. U.S. Att’y Gen., 820

F.3d 399, 404 (11th Cir. 2016) (per curiam); In re M-E-V-G-, 26 I. & N. Dec. 227,

251–52 (B.I.A. 2014).

1

We have held that the BIA’s interpretation of “particular social group” is entitled to Chevron

deference because the INA does not define the ambiguous phrase. Castillo-Arias v. U.S. Att’y

Gen., 446 F.3d 1190, 1196 (11th Cir. 2006). We follow the BIA’s interpretation of what

constitutes a particular social group under the INA unless the interpretation is unreasonable,

arbitrary, capricious, or clearly contrary to law. Id.

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A. Immutability

An immutable characteristic is one “that the members of the group either

cannot change, or should not be required to change because it is fundamental to

their individual identifies or consciences.” In re Acosta, 19 I. & N. Dec. 211, 233

(B.I.A. 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec.

439 (B.I.A. 1987). The BIA provides a non-exhaustive list of immutable

characteristics, such as “sex, color, or kinship ties, or in some circumstances, . . . a

shared past experience such as former military leadership and land ownership.” Id.

The IJ and BIA noted that Alvizuriz-Lorenzo’s proposed particular social

group of “girls or young women in Guatemala who cannot leave their family as a

result of their age or economic conditions” likely satisfies the immutability

requirement. Because Alvizuriz-Lorenzo’s proposed social group is comprised of

members who share a common immutable characteristic of gender—“girls or

young women”—and kinship ties—“who cannot leave their family”—she satisfies

the immutability requirement. See Gebremichael v. I.N.S., 10 F.3d 28, 36 (1st Cir.

1993) (“There can, in fact, be no plainer example of a social group based on

common, identifiable and immutable characteristics than that of a nuclear

family.”).

B. Particularity

“A particular social group must be defined by characteristics that provide a

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clear benchmark for determining who falls within the group.” In re M-E-V-G-, 26

I. & N. Dec. at 239. The terms used to describe the proposed social group must

have commonly accepted definitions in the society in question. Id.; see also In re

A-M-E & J-G-U-, 24 I. & N. Dec. 69, 76 (B.I.A. 2007). Moreover, the “group

must also be discrete and have definable boundaries—it must not be amorphous,

overbroad, diffuse, or subjective.” In re M-E-V-G-, 26 I. & N. Dec. at 239.

Satisfaction of the particularity element can vary depending on the cultural

context involved. That is, a proposed social group can satisfy particularity in one

region and simultaneously lack particularity in different region. See In re W-G-R-,

26 I & N Dec. 208, 214 (B.I.A. 2014) (explaining that the particularity element is

not addressed in isolation but must be considered in the context of the society out

of which the claim for asylum arises).

Alvizuriz-Lorenzo argues that each of the terms and phrases in her group

definition—“girls or young women,” “who cannot leave their family,” “as a result

of their age or economic conditions”—combine to describe a group with distinct

boundaries in her region.

Guatemala has enacted laws 2 that have addressed intrafamily violence

2

Guatemala enacted the 1996 Law to Prevent, Punish, and Eradicate Family Violence. See

Karen Musalo & Blaine Bookey, Crimes Without Punishment: An Update on Violence Against

Women and Impunity in Guatemala, 10 HASTINGS RACE & POVERTY L.J. 265, 274 (2013),

https://cgrs.uchastings.edu/sites/default/files/Musalo_Bookey_CrimesWithoutPunishment_2013.

pdf. The objective of the 1996 Law was to prevent intrafamily violence through a protective

measure but was not intended to punish the aggressors. Id. at 275. Prior to 2008, the 1996 Law

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against women, and, importantly, there is a widely recognized lack of enforcement

of these laws. Guatemala thus purports to give Alvizuriz-Lorenzo relief from her

family’s atrocious acts—in the form of prosecuting her family members under the

laws of Guatemala—but nonetheless refuses to enforce those laws. As Alvizuriz-

Lorenzo testified at her merits hearing, she did not formally report her family’s

abuse because it is a generally accepted truth in Guatemalan society that police

refuse to help in instances of rape. An affidavit from a Guatemalan police officer

corroborates the veracity of this claim. Police officer Giovani David Lorenzo

Estevan indicated that women of sexual crimes refuse to file formal complaints for

fear of “reprisals by the alleged perpetrator or syndicate and due to the tedious,

cumbersome and delayed criminal proceedings of the Guatemalan justice system,

which, instead of prompt and effective justice, revictimizes the victims

psychologically.”

Alvizuriz-Lorenzo further testified that she spoke with a young girl from

Guatemala who was sexually abused by her father. The girl reported the abuse to

police, but she was told that her formal complaint would be “a waste of time” and

that she should simply “deal with it.” The police informed the young girl that the

was the only law to address violence against women. Id. at 274. In 2008, Guatemala enacted the

Law Against Femicide and Other Forms of Violence Against Women. Id. While the 2008 Law

criminalized a range of acts of violence against women, Guatemala’s efforts to enforce the 2008

Law have had minimal impact on the heightened levels of violence and rates of impunity for

such crimes. Id. at 279.

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police do not get involved in family relationships and that she should resolve the

problem on her own.

This continuous lack of prosecution for intrafamily violence against women

has left Alvizuriz-Lorenzo without recourse to distance herself from her family.

And the fact that many women in Guatemala suffer from the same hindrance to

justice, thereby ensuring the cohesiveness of the family unit remains unscathed,

supports the conclusion that the terms used to describe Alvizuriz-Lorenzo’s

proposed social group—“girls or young women . . . who cannot leave their family

as a result of their age or economic conditions”—have “commonly accepted

definitions” within Guatemalan society. See In re M-E-V-G-, 26 I. & N. Dec. at

239. Thus, I would find that Alvizuriz-Lorenzo’s proposed particular social group

sufficiently satisfies the particularity element.

C. Socially Distinct

An applicant for asylum must additionally show that her particular social

group is “socially distinct within the society in question.” Id. at 252. A group is

socially distinct if there is “evidence showing that society in general perceives,

considers, or recognizes persons sharing the particular characteristic to be a

group.” In re W-G-R-, 26 I. & N. Dec. at 217. Social distinction, formerly called

social visibility, does not require the group to be “ocularly visible to others in

society.” In re M-E-V-G-, 26 I. & N. Dec. at 240. That is, “[s]ociety can consider

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persons to comprise a group without being able to identify the group’s members on

sight.” Id. Rather, social distinction refers to social recognition: “it must be

perceived as a group by society.” Id. (emphasis added).

Determining social distinction is an “evidence-based inquiry as to whether

the relevant society recognizes [the] particular social group.” Pirir-Boc v. Holder,

750 F.3d 1077, 1084 (9th Cir. 2014). This evidence-based inquiry includes

society-specific evidence, “such as country conditions reports, expert witness

testimony, and press accounts of discriminatory laws and policies, historical

animosities, and the like.” In re M-E-V-G-, 26 I. & N. Dec. at 244 (internal

quotation marks omitted).

Alvizuriz-Lorenzo contends that the record evidence demonstrates the

frequency of intrafamily violence in Guatemala and the country’s unsuccessful

attempts to curtail such violence. She argues that Guatemala’s attempt to

criminalize violence in familial relationships strongly indicates that Guatemalan

society views her proposed social group as distinct within society.

The record evidence establishes that Guatemalan society recognizes the

particular vulnerability of young girls and women unable to leave their families.

Incest, for example, is one of the pervasive forms of violence against women in

Guatemala. See Musalo & Bookey, supra note 2, at 269 (“Violence against

women pervades all sectors of Guatemalan society. The violence takes many

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brutal forms, including intra-familial (or domestic) violence, sexual violence,

incest, human trafficking, and, at the extreme end of the spectrum, femicide.”).

The Guatemalan government evidently recognizes the prevalence of intrafamily

violence against women and children, as evidenced by the 2015 Guatemala Human

Rights Report. The Human Rights Report notes that the Guatemalan government

specifically tracks the number of “intrafamily violence against women and

children,” and even goes to the extent of distinguishing between sexual crimes

against women and the “sexual exploitation of children.” U.S. Dep’t of State,

Bureau of Democracy, Human Rights, and Labor, Country Reports on Human

Rights Practices for 2015:Guatemala 2015 Human Rights Report 14–18,

https://2009-2017.state.gov/documents/organization/253229.pdf. The Human

Rights Report also indicates that Guatemalan society acknowledges the prevalence

of young women remaining subservient to elder family members—the Guatemalan

“Congress eliminated a provision that previously allowed girls to marry at 14 . . .

with parental consent” precisely to prevent forced marriage and sexual relations.

Id. at 18. The concern for young girls and women unable to safely distance

themselves from their harmful familial relationships is further exacerbated by

Guatemala’s culture of “machismo and family violence.” Id.

These efforts to protect women from family abuse, albeit unsuccessful,

indicate that Guatemalan society recognizes the vulnerability of young girls and

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women unable to leave their families. I would conclude that a particular social

group consisting of “girls or young women in Guatemala who cannot leave their

family as a result of their age or economic conditions” is viewed by Guatemalan

society as socially distinct. The record “fairly compels the conclusion” that Zury

suffered past persecution on account of a cognizable particular social group. See

Sanchez Jimenez, 492 F.3d at 1232. Thus, there is a rebuttable presumption that

she has a well-founded fear of future persecution. See Ruiz, 440 F.3d at 1257.

II. Humanitarian Asylum

Even in the absence of a well-founded fear of future persecution, Alvizuriz-

Lorenzo may still be entitled to a discretionary grant of humanitarian asylum. See

In re L-S-, 25 I. & N. Dec. 705, 710 (B.I.A. 2012). An asylum applicant who has

established past persecution on account of a statutorily protected ground, but no

longer has a well-founded fear of future persecution, may nonetheless be entitled to

a discretionary grant of humanitarian asylum by establishing that she has

“‘compelling reasons,’ arising out of the severity of past persecution, for being

unable or unwilling to return to [her] country under [8 C.F.R.]

§ 1208.13(b)(1)(iii)(A) . . . .” In re L-S-, 25 I. & N. Dec. at 710. Applicants are

eligible for humanitarian asylum based on these grounds when they have suffered

“an atrocious form of persecution that results in continuing physical pain and

discomfort.” Id. at 712. In other words, the applicant must establish that the “past

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persecution was so severe that repatriation would be inhumane.” Abrha v.

Gonzales, 433 F.3d 1072, 1076 (8th Cir. 2006). To determine whether the past

persecution was so severe as to warrant humanitarian asylum relief, we focus on

“the degree of harm suffered, the length of time over which the harm was inflicted,

and evidence of psychological trauma resulting from the harm.” Id.

In analyzing whether Alvizuriz-Lorenzo was entitled to humanitarian

asylum, the IJ explained that, in the absence of a well-founded fear of future

persecution, she must demonstrate compelling reasons for being unwilling or

unable to return to Guatemala due to the severity of the past persecution.

Notwithstanding the fact that the IJ previously found (1) Alvizuriz-Lorenzo’s

testimony credible, (2) that “she suffered very serious harm by [her] family

members,” and (3) that her sexual abuse and rape rose to the level of past

persecution required under the INA, the IJ ultimately determined that the past

persecution was not on account of her membership in a cognizable particular social

group. I would conclude that Alvizuriz-Lorenzo is entitled to humanitarian asylum

because the past persecution she suffered on account of her membership in a

particular social group “was so severe that repatriation would be inhumane.” See

id.

Humanitarian asylum “is reserved for the most extraordinary cases.”

Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1201 (11th Cir. 2009) (per curiam).

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Alvizuriz-Lorenzo’s case rises to that level on account of “the degree of harm

suffered, the length of time over which the harm was inflicted, and evidence of

psychological trauma resulting from the harm.” See Abrha, 433 F.3d at 1076.

Alvizuriz-Lorenzo was terrorized by her family as a victim of incest and sexual

abuse by her grandfather and father for over 12 years. Just when she thought these

atrocious acts were over, she was raped, impregnated, and threatened by her

cousin’s husband. The severity of this harm constitutes an egregious form of

persecution that entitles her to humanitarian asylum under 8 C.F.R.

§ 1208.13(b)(1)(iii)(A).

The BIA erred in determining that Alvizuriz-Lorenzo was not persecuted on

account of her membership in a cognizable particular social group. The record

evidence compels a finding that she suffered persecution on account of her

membership in a cognizable particular social group. “[T]he IJ should have shifted

the burden to the government to rebut the presumption that [Alvizuriz-Lorenzo]

had a well-founded fear of future persecution. See Marin v. U.S. Att’y Gen., 253 F.

App’x 830, 834 (11th Cir. 2007).

Accordingly, I would vacate the IJ’s decision denying asylum and remand to

the BIA to give the government the opportunity to rebut the presumption that

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Alvizuriz-Lorenzo has a well-founded fear of future persecution. See id. 3

3

I also note that, in In re A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014), the BIA recognized

“married women in Guatemala who were unable to leave their relationship” as a particular social

group, but that In re A-B-, 27 I. & N. Dec. 316 (A.G. 2018), overruled it. Subsequently, the

District Court for the District of Columbia, in a published opinion, permanently enjoined

application of In re A-B-, concluding that the decision is “arbitrary and capricious and violates

the immigration laws.” Grace v. Whitaker, 344 F. Supp. 3d 96, 105, 125–27 (D.D.C. 2018).

Given the similarity, at the very least, I would accept the government’s alternative request to

remand for the BIA to address in the first instance the impact of In re A-B-. The In re

A-R-C-G- analysis was flawed.

28